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Upon Petition of Heims

Court of Appeals of Iowa

January 9, 2019

Upon the Petition of LYNETTE ANNE HEIMS, Petitioner-Appellant, And Concerning BRAD FRANCIS HEIMS, Respondent-Appellee.

          Appeal from the Iowa District Court for Dubuque County, Monica Wittig, Judge.

         A former spouse appeals from the district court's order terminating spousal support and modifying child support obligations. AFFIRMED.

          Jenny L. Weiss of Fuerste, Carew, Juergens & Sudmeier, P.C., Dubuque, for appellant.

          Taryn R. McCarthy of Clemens, Walters, Conlon Runde, & Hiatt, L.L.P., Dubuque, and Darin S. Harmon of Kintzinger, Harmon, Konrardy, PLC, Dubuque, for appellee.

          Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.


         Lynette Heims appeals from the district court's order terminating Brad Heims's spousal support obligation and modifying the child-support order from their 2014 Illinois dissolution of marriage decree. She argues a substantial change in circumstances has not occurred, continuing the spousal and child support orders is equitable, and the district court should have awarded her attorney fees. Both parties request appellate attorney fees. We agree with the court's termination of spousal support and modification of child support. We also find no decision on trial attorney fees to review, and we decline to award appellate attorney fees.

         I. Background Facts and Proceedings

         On September 15, 2001, the parties married in Iowa. Four children were born to the parties between 2001 and 2007. On February 13, 2014, the parties divorced in Illinois. At that time, the parties entered into a marital settlement agreement (MSA), which placed physical care of the children with Lynette, granted visitation to Brad, and required Brad to pay child support of $641.13 per week. The MSA also contained the following provision regarding "Maintenance (Alimony)":[1]

[Lynette] shall receive the sum of $160.28 per week, as and for maintenance for a period of not less than three (3) years from the date of entry of this Marital Settlement Agreement. Said amount shall be incorporated into an Order for Support and a Notice of Withholding shall issue for said amount to [Brad's] employer. Maintenance may be reviewed by [Brad], upon proper notice and petition filed at least sixty (60) days prior to the three-year period herein, to determine if further maintenance is or is not warranted under the statutory factors contained in the Illinois Marriage and Dissolution of Marriage Act then in force and effect, or any such similar statute in any state in which the parties may reside and in which the judgment for dissolution of marriage and this Agreement have been enrolled. Maintenance is calculated as the amount necessary, in combination with child support being received by [Lynette], to equal 50% of [Brad's] net annual income.

         Under the MSA, Lynette received 57.5% of the total marital assets. Both parties eventually moved to Dubuque County, Iowa, and on August 21, 2015, the parties registered their dissolution of marriage decree, including the incorporated MSA, in Iowa. On December 12, 2016, Brad filed the petition to modify in Iowa, seeking to terminate his spousal support obligation. On July 27 and August 22, 2017, trial was held on Brad's petition. At the conclusion of the first day of trial, the court suggested the parties seek a modification of child support because the two support calculations are "totally intertwined." Brad then made such motion orally.

         After earning her degree as a registered nurse in 1992, Lynette worked as a nurse until 2002 when she left the workforce to care for the parties' children. She then allowed her nursing license to become inactive. In March 2014, Lynette reactivated her license, which required completing certain education requirements. She then worked as a nurse, but she left the position after less than one year because she was not "up to date on things, and it-it was just very stressful, going back in there, not knowing any of that." For the next two years, she provided in-home assistance to elderly and disabled persons through an agency that paid her $7.50 per hour. Since 2016, she has provided in-home assistance to a private individual for about thirty hours per week at $10 per hour, and she has provided in-home assistance through another agency for about six hours per week at $20 per hour. She testified this schedule works well, allowing her to better care for the parties' children. Her tax returns show her adjusted gross income was $19, 212 in 2015 and $23, 325 in 2016. As for housing, Lynette owns a home in Dubuque where she and the parties' four children reside. She purchased the home from her sister, who had assisted her during the divorce; Lynette agreed to pay her back for the home when her finances stabilized. She has borrowed additional money to fund this transaction. Lynette's paramour of four years often "stays overnight" in her home and helps with the parties' children, but Lynette testified "he doesn't live there."

         Also at the time of trial, Brad lived in a home in Epworth with his paramour and her three children. He primarily works for a gas company in Chicago, Illinois, and he also has a hobby farm on his property, which generally operates at a loss. He testified he needs to work at least forty-five hours per week to pay all his obligations. His tax returns show his adjusted gross income was $122, 822 in 2015 and $106, 983 in 2016.[2]

         On October 8, 2017, the district court issued its modification order. The court determined the spousal support was intended as rehabilitative to equalize the parties' incomes while Lynette returned to the workforce. The court concluded three years of spousal support was sufficient and terminated the support. The court also modified Brad's child support obligation to $2098.14 per month ...

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